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Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute.

This unfair labor practice case is before the Authority on an exception
filed by the General Counsel to the attached decision of the Administrative Law
Judge. The Respondent filed an opposition to the exception.

The Judge found that the Respondent violated section 7116(a)(1), (2)
and (4) of the Federal Service Labor-Management Relations Statute (the Statute)
by denying an award to a unit employee because of the employee's protected
activity. The General Counsel excepts only to the wording of the Judge's
recommended Notice. Upon consideration of the entire record, we adopt the
Judge's findings and conclusions, as to which there were no exceptions, and
modify the Judge's recommended Notice, as described below.

II. Background and Judge's Decision

The background with regard to the merits of this case is fully set
forth in the Judge's decision. After finding that the Respondent violated the
Statute as alleged, the Judge addressed the General Counsel's request that the
Respondent be ordered to post a Notice that: (1) identifies by name the
official of the Respondent who committed the unfair labor practice; and (2)
states that the official "engaged in the unlawful discrimination[.]" Judge's
Decision at 12.

The Judge denied the request in both respects, stating that such a
remedy might be appropriate where there is a pattern of misconduct or a
particularly egregious violation. He then observed that the National Labor
Relations Board routinely includes in its notices a statement that it has found
a violation of the National Labor Relations Act. The Judge concluded that
"[w]hether the Authority should adopt the Board's practice is a policy question
best directed to it." Id. The Notice recommended by the Judge contains
the customary Authority language.(*)

III. Positions of the Parties

A. General Counsel

The General Counsel excepts only to the Judge's failure to state in the
Notice that the Respondent has been found by the Authority to have violated the
Statute. The General Counsel states that the "concern is not so much that the
discriminating official's name be listed in the Notice but the Notice should
reflect, in clear and explicit terms, that the Respondent has been found in
violation of the Statute . . . by the Authority." Exception at 7.

The General Counsel argues that the proposed language would effectively
assure employees that their rights are being "vigorously" enforced, id.
at 6, and that the Respondent will not violate the Statute in the future.

B. Respondent

The Respondent opposes only the General Counsel's request that the
official of the Respondent be named in the Notice. The Respondent states that
it would not object if the Notice refers to specific sections of the Statute
found to have been violated, as long as the Notice identifies the Respondent,
and not the official, as the subject of the Notice.

IV. Analysis and Conclusions

The only issue in dispute is whether the Notice should explicitly state
that the Authority has found that the Respondent violated the Statute. As the
Authority has stated, "a notice provides evidence to bargaining unit employees
that the rights guaranteed under the Statute will be vigorously enforced[,]"
and in many instances "is the only visible indication to those employees that a
respondent recognizes and intends to fulfill its obligations under the
Statute." U.S. Department of Justice, Office of the Inspector General,
Washington, D.C. and United States Immigration and Naturalization Service, El
Paso, Texas, 47 FLRA 1254, 1263 (1993); U.S. Department of
Treasury, Customs Service, Washington, D.C. and Customs Service Region IV,
Miami, Florida, 37 FLRA 603, 605 (1990). The Authority's notices serve a
critical role in effectuating the purposes of the Statute. Therefore, their
contents must be clear and their import readily understandable.

We find that these purposes will be enhanced by explicitly stating in
the Notice to employees that the Authority has found the Respondent to have
violated the Statute. No arguments have been advanced that question the
propriety of such a statement. Accordingly, we modify the Judge's recommended
Notice in this case, and we will make such language a part of all future
notices when unfair labor practices are found.

V. Order

Pursuant to section 2423.29 of the Authority's Regulations and section
7118 of the Statute, the U.S. Department of Justice, Immigration and
Naturalization Service, shall:

1. Cease and desist from:

(a) Discriminating against employees by disapproving recommendations
that they receive Sustained Superior Performance cash awards because they
engaged in protected activities on behalf of the American Federation of
Government Employees, Local 2718, AFL-CIO, the agent of the exclusive
representative of its employees.

(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights assured by the Statute.

2. Take the following affirmative action to effectuate the purposes and
policies of the Statute:

(a) Make whole employee David Harding by granting him the Sustained
Superior Performance cash award recommended by his supervisor, not to exceed
$500.00, with interest for the period in which his award was improperly denied.

(b) Post at its facilities in Chicago, Illinois, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the District Director of the
Chicago District Office, and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that such Notices are not altered, defaced, or covered
by any other material.

(c) Pursuant to section 2423.30 of the Authority's Regulations, notify
the Regional Director, Chicago Region, Federal Labor Relations Authority, in
writing, within 30 days from the date of this Order as to what steps have been
taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States
Department of Justice, Immigration and Naturalization Service violated the
Federal Service Labor-Management Relations Statute and has ordered us to post
and abide by this notice.

We hereby notify our employees that:

WE WILL NOT discriminate against employees by disapproving
recommendations that they receive Sustained Superior Performance cash awards
because they engaged in protected activities on behalf of American Federation
of Government Employees, Local 2718, AFL-CIO, the agent of the exclusive
representative of our employees.

WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

WE WILL make whole employee David Harding by granting him the Sustained
Superior Performance cash award recommended by his supervisor, not to exceed
$500.00, with interest for the period in which his award was improperly denied.

__________________________(Agency or Activity)

Date:_____________ By:__________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of
posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the Regional
Director, Chicago Regional Office, Federal Labor Relations Authority, whose
address is: 55 West Monroe, Suite 1150, Chicago, IL 60603-9729, and whose
telephone number is: (312) 353-6306.

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

UNITED STATES DEPARTMENT OF

JUSTICE, IMMIGRATION AND

NATURALIZATION SERVICE

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2718, AFL-CIO

Charging Party

Case No. CH-CA-40010

Philip T. Roberts, Esquire For the General Counsel

Marian M. Luisi, Labor Relations Specialist For the Respondent

Rodolfo Medellin, President of the Charging Party

Before: JESSE ETELSON Administrative Law Judge

DECISION

The complaint in this case alleges that the Respondent (INS) violated
sections 7116(a)(1), (2), and (4) of the Federal Service Labor-Management
Relations Statute (the Statute) by denying to employee David Harding a
Sustained Superior Performance cash award for which his supervisor recommended
him, because of activities that Harding engaged in on behalf of the Charging
Party (the Union). INS admits each allegation of the complaint except the
allegations that it denied the award because of Harding's union activities and
that it committed unfair labor practices.

A hearing was held on October 19 and 20, 1994, in Chicago, Illinois.
Counsel for the General Counsel and for INS filed post-hearing briefs.

Findings of Fact

David Harding became a full-time employee in the Chicago District
Office of INS as a deportation officer in 1987. In November 1990 he was elected
Executive Vice President of the Charging Party (the Union), the authorized
local representative of the national bargaining representative of INS
employees. In 1992 Harding filed a grievance concerning the rotation of
employees to the U.S. Penitentiary at Terre Haute, Indiana. In July 1992 the
Union filed an unfair labor practice charge alleging that INS ordered Harding
on a detail to the Terre Haute facility as a disciplinary measure to restrain
his union activities (G.C. Exh. 5). This charge resulted, on January 15, 1993,
in a complaint issued by the Authority's Regional Director. (G.C. Exh. 6). The
case was subsequently settled, between the INS and the Regional Director,
without the Union's participation. The settlement included posting of a
Notice to All Employees (G.C. Exh. 7).

In early 1993, Harding participated in the continuation of a lengthy
negotiation concerning the assignment of overtime. Harding was one of three
members of the Union's bargaining team, headed by Union President Rodolfo
Medellin. At least at the later stages of these negotiations, Harding assumed a
major role. Some of the discussions became heated, and Harding made some
comments that exasperated members of the INS bargaining team, headed by Deputy
District Director Brian Perryman. Perryman later told Medellin that he thought
Harding had been disrespectful to INS bargaining team member Marian
Luisi.Harding participated in other negotiations, and processed some
grievances, in the spring of 1993.

On April 19, 1993, Harding received an "Outstanding" performance
appraisal for the annual rating period ending March 31, 1993 (G.C. Exh. 2). The
appraisal had been made by his immediate supervisor, Diana Rodriguez, and
endorsed by Deputy Assistant Director Diane Esbrook, Rodriguez's supervisor. On
May 5, Rodriguez forwarded a recommendation that Harding receive a Sustained
Superior Performance cash award (G.C. Exh. 3). This recommendation was endorsed
by Esbrook and her superior, Assistant District Director Roger Piper.

On April 30, Harding had sent to District Director Moyer a letter,
signed by Harding as Union Executive Vice President, on behalf of unit employee
Robert Reidell. The letter informed Moyer that Reidell had not received any
response to a request he had made to two named supervisors for a review of his
annual performance appraisal. The April 30 letter requested that a response be
given to Reidell within five days, and stated that "[i]f no response is given
to Mr. Reidell, the Local will pursue all available remedies including the
filing of an unfair labor practice complaint against Management and the filing
of a formal grievance pursuant to the Agreement." (G.C Exh. 8). Moyer Responded
to Harding in a letter dated May 10 (G.C. Exh. 9). The body of that letter
follows:

Reference is made to your letter of April 30, 1993, regarding the
performance appraisal of Special Agent Robert Reidell. Please be advised that
Mr. Farris was on detail out of the District from April 18, 1993 until May 1,
1993. In fact, he was not in the District at the time you composed this insipid
request.

Your use of such threatening language, when a simple check of the
facts with Mr. Reidell's first line supervisor would have informed you of Mr.
Farris' absence, is unprofessional and inconsistent with good labor management
relations.

Mr. Farris will respond to Mr. Reidell's request shortly, when he has
had an opportunity to review the facts.

This letter was signed by Moyer, although Deputy Director Perryman
testified that it was prepared, at Perryman's direction, by the Mr. Farris
named in the letter. Farris, the Assistant District Director for
Investigations, was not one of supervisors named in Harding's letter as the
recipients of Reidell's request for review. In fact, Harding's letter at least
implicitly recognized Farris' absence. Thus, Michael Goldstein, a second-line
supervisor, had been named in Harding's letter as the Acting Assistant Director
for Investigations.

On May 25, Union President Medellin had a meeting with Deputy Director
Perryman at which Perryman brought up Harding's April 30 letter to Moyer.
Perryman complained about the letter's demeanor and its lack of respect for
Moyer. Perryman explained to Medellin that he understood the use of the word,
"insipid," in the May 10 response from Moyer, to be "extremely strong language
back to the Union on a labor management issue," and that it reflected that
management was "becoming very frustrated at the tone of the language,
particularly of letters written by Mr. Harding on behalf of the Union."
Medellin told Perryman that Harding was not the author of the April 30 letter
but had signed it as the Executive Vice President in the absence of Medellin,
who had been away on a detail.

On May 27, a memorandum was issued over Moyer's signature forwarding to
the Acting Regional Administrator a list of 47 employees approved by Moyer for
performance awards (Resp. Exh. 4). This list represented the fiscal year 1993
approved recommendations for awards in the Chicago District. Harding's name was
not on the list. It was Perryman's "understanding" that Harding was among 33
employees who received "outstanding" ratings but did not receive cash awards.
However, Perryman did not know whether, aside from Harding, any employees who
were rated "outstanding" and were recommended by their
supervisors for awards did not receive them.

Before approving the list, Moyer had discussed some of the
recommendations, including Harding's, with Perryman.(1) According to Perryman, Moyer questioned whether some of the
nominees, including Harding, deserved awards. Perryman testified that Moyer
stated that Harding's supervisors, Rodriguez, Esbrook, and Piper, had
complained about Harding's "uncooperativeness in the performance of his duties
as a deportation officer." Moyer also told Perryman that in a number of cases,
including Harding's, the supervisors "didn't have the guts to rate some of [the
employees granted 'outstanding' ratings] honestly." Perryman testified that he
did not know why Moyer disapproved the award for Harding.

When Union President Medellin met with Perryman in May, he had asked
Perryman to help him set up a meeting with Moyer, whom Medellin had never met
in his capacity as Union president. Such a meeting occurred on June 24.
Medellin and Moyer met in Moyer's office for over two hours. Toward the end,
according to Medellin's uncontroverted and credited testimony, Moyer brought up
the subject of David Harding. Moyer complained to Medellin that Harding was
insolent in the demeanor in which he addressed Moyer. Moyer said he thought
Harding had no respect for him. Medellin told Moyer that Harding had not
written the April 30 letter. At that point, Moyer looked at his clock and ended
the meeting by stating that he had another appointment.

As part of INS' case, Rodriguez and Esbrook, Harding's first and
second-level supervisors, were called to deny certain conversations that
Harding testified were reported to him by Rodriguez concerning management's
concern with his union activities. However, neither Rodriguez nor Esbrook was
asked to confirm the statement, attributed to Director Moyer by Perryman, that
they had complained about Harding's uncooperativeness in the performance of his
duties as an employee.

Rodriguez testified credibly that she had noted on her original award
recommendation for Harding that his work, which "he had performed in an
outstanding manner," had not suffered "despite his involvement with the Union
and time spent with the Union." Esbrook returned the recommendation to
Rodriguez with instructions to omit the reference to union activities. The
revised recommendation submitted on May 5 states that Harding is "highly
productive and motivated" and that he "reviews all his cases well in advance
and has kept the entire docket in a state of currency throughout this period."
Rodriguez also testified, and it is uncontroverted, that in the appraisal year
prior to the one in which she rated Harding "outstanding," his overall rating
was "excellent," one step down in the five-level rating system.

Supervisory Special Agent Michael Goldstein, who is Chief of the
District's Sanctions Unit and a second-line supervisor (although not in
Harding's chain of command) testified about the criteria used in his unit for
recommending cash awards. He testified credibly that, in his unit, the
first-line supervisors "may elect not to write [an employee with an
"outstanding" rating] up for cash because it's not a continuing effort on the
part of the [employee]." Goldstein explained that employees who appears to work
consistently at the "outstanding" level can be expected to continue to perform
at that level, and that a cash award is "the only thing we can give them."
Goldstein was under the impression that at least two employees from his unit
had received "outstanding" ratings but had not been recommended for awards. He
was not asked whether any award recommendations by his first-line supervisors
were disapproved.

Discussion, Additional Findings, and
Conclusions

Section 7116(a)(2) of the Statute makes it an unfair labor practice for
an agency "to encourage or discourage membership in any labor organization by
discrimination in connection with hiring, tenure, promotion, or other
conditions of employment." Section 7116(a)(4) makes it an unfair labor practice
"to discipline or otherwise discriminate against an employee because the
employee has filed a complaint, affidavit, or petition, or has given any
information or testimony under this chapter." Filing of a charge
with the Authority is considered the equivalent of filing one of the
documents expressly protected under section 7116(a)(4). See Department of
Veterans Affairs Medical Center, Brockton and West Roxbury, Massachusetts,
43 FLRA 780 (1991) (Brockton).

The familiar analytical framework for resolving cases of alleged
section 7116(a)(2) discrimination, established by the Authority in
Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), was
recently reaffirmed in U.S. Department of Agriculture, U.S. Forest Service,
Frenchburg Job Corps, Mariba, Kentucky), 49 FLRA 1020 (1994)
(Frenchburg), and need not be restated here. The Letterkenny
analysis is also applicable to section 7116(a)(4) cases. Brockton,
supra. Here, among the elements of a prima facie case of section
7116(a)(2) or (a)(4) discrimination, it is undisputed that Harding engaged in
activity protected by each of these subsections and that a decision was made
affecting a condition of his employment, namely, whether he should receive an
award.(2) The decision not to grant him an
award indisputably involved discrimination between Harding and those employees
who received awards. The questions remaining concern whether it was lawful
discrimination or discrimination based on Harding's protected activities.

I find that the General Counsel has established a prima facie
case of discrimination under section 7116(a)(2). The record leaves little doubt
that, during the time Director Moyer was reviewing the recommendation for
Harding's award, he was upset about the manner in which Harding was exercising
his right to engage in union activities, particularly his signature on and
apparent authorship of the April 30 letter. Moyer signed the May 10 response to
Harding, taking strong exception to "your letter of April 30," in which
Harding, in the language of the response, "composed this insipid request."
Perryman admitted to Medellin that management intended to respond with "very
strong language" because it was "becoming very frustrated . . .," particularly
at the tone "of letters written by Mr. Harding on behalf of the Union." Moyer
himself complained to Medellin about the manner in which Harding addressed him.
Medellin did not testify that Moyer explained specifically what he was talking
about. However, Medellin's response to Moyer--informing him that Harding had
not written the April 30 letter--shows that Medellin interpreted Moyer's
remarks as referring at least in part to that letter.

It is reasonable to suppose that complaints Moyer made about Harding to
the Union president related to Harding's conduct as a Union officer. There was
no evidence about what other contacts, Harding had with Moyer. I conclude from
all the circumstances, including Moyer's May 10 letter and Perryman's previous
comments to Medellin about Harding's letters for the Union, that Medellin's
interpretation of Moyer's complaint was correct.

Perryman's testimony about his discussion with Moyer about the
recommendations for Harding and others persuades me that Moyer, despite
testimony that he left matters of day-to-day operations to Perryman, did take
an interest in employee awards. Moyer questioned the recommendations for
several employees, but Perryman could think of no other recommendations that
Moyer disapproved. INS made a point of the fact that other employees receiving
"outstanding" ratings did not receive awards. However, Perryman's inability to
state that any other recommendations for awards were disapproved, and the
silence of all other INS witnesses on this point, leads me to infer that Moyer
approved all of the recommendations except Harding's.(3) This different treatment of
Harding, given Moyer's demonstrated annoyance at the way Harding expressed
himself in the April 30 letter, amply supports the inference that this letter,
perhaps in conjunction with other of Harding's union activities, played a
motivating role in the decision to disapprove the award.

Even more difficult to ignore than INS' silence on the issue of
disapproval of other award recommendations is its failure to present the only
witness who could explain Director Moyer's decision to disapprove Harding's
award, Moyer himself. Moyer was unavailable at the time of the hearing because
of a medical emergency. In recognition of that emergency, I took what Counsel
for the General Counsel accurately calls "the extraordinary step" of inviting
INS to file a motion to reopen the record to permit him to testify. The
opportunity thus presented was not exercised. INS argues that Moyer's testimony
would have been irrelevant because the evidence does not link him with any
allegation of discrimination. I simply cannot accept that characterization of
the record, for, as found above, Moyer was clearly the responsible
decision-maker, and his motivation is central to the case. I draw an adverse
inference from Moyer's failure to testify. That inference is that his truthful
testimony would have supported a finding that at least some of Harding's union
activities entered into Moyer's decision to disapprove the award
recommendation. See Bureau of Engraving and Printing, 28 FLRA 796, 802
(1987). The result of applying this inference only strengthens the prima
facie case.

INS makes an argument suggesting that reliance on Harding's sending the
April 30 letter in denying him an award was justified. Thus, INS attacks the
"absurdity" of Medellin's statements freeing Harding of responsibility for the
letter, and attacks the letter itself as exhibiting on Harding's part a
"bullheaded approach to the District Director, who had no prior knowledge of
the matter" (Brief at 25). The argument goes on to decry Harding's "ham fisted
approach," his reaction "much as a petulant child denied a toy." INS asks,
"[B]y what authority does Mr. Harding impose time restraints on the District
Director, under penalty of grievance and unfair labor practice charges?" (Brief
at 26.) On these grounds, the April 30 letter is said to have caused the
District Director to believe that Harding had no respect for him or his
position.

These objections to the manner in which Harding conducted his union
activities do not avail INS because, however such conduct may dismay
management, it does not lose its protection under the Statute unless it was so
outrageous or insubordinate as to constitute flagrant misconduct. U.S.
Department of the Air Force,Randolph Air Force Base, San Antonio,
Texas, 46 FLRA 978 (1992); Department of the Navy, Naval Facilities
Engineering Command, Western Division San Bruno, California, 45 FLRA 138,
156 (1992) (San Bruno). I find nothing in Harding's conduct to remove
his activities from the Statute's protection. The April 30 letter is a request
for a response to an employee's request, together with a suggested response
time and a statement, not extraordinary in such circumstances, that unless a
response is received the Union "will pursue all available remedies" including
those that INS found objectionable. The letter's tone is one of impatience with
management's failure to respond to the original request. Whether this
impatience was reasonable or not, this was not flagrant, outrageous, or
insubordinate conduct. See San Bruno at 156-57. Moyer evidently took
offense but, to the extent that he acted on a subjective belief that Harding
had overreached, he did so at the risk that the Authority would disagree.(4)

INS also argues that no antiunion motivation can be inferred because it
treated other Union officials fairly, granting them promotions and, when
appropriate, cash awards. I do not find any general antiunion animus here, only
hostility to Harding because of what it perceived to be his style of advocacy.
Nor does it matter whether the language in the April 30 letter is Harding's or
not. Moyer thought it was, or at least held him responsible.

I conclude that Harding's union activity, his participation in the
April 30 letter being the precipitating event, was a motivating factor in the
disapproval of his award. On the other hand, I find an insufficiently developed
link between Harding's filing of unfair labor practice charges and the
disapproval to make a prima facie case of section 7116(a)(4)
discrimination. If such a link exists at all, it was so emphatically
overshadowed by the link with Harding's other union activities, at least on the
record presented here, that it is impossible for me to conclude that the
section 7116(a)(4) activity was a motivating factor.

INS makes several points in rebuttal to the prima facie
section 7116(a)(2) case. The first is that Moyer's disapproval of the award was
based on reports he had received that Harding was an uncooperative deportation
officer and on Moyer's belief that Harding's "outstanding" rating was not an
honest appraisal of his performance. I have difficulty in crediting this
defense because it relies exclusively on the testimony of Perryman, who did not
make the decision and who testified that he did not know why Moyer made the
decision. In order to credit the defense I would be required not only to credit
Perryman's testimony that Moyer expressed these thoughts to Perryman, but also
to accept the implication that Moyer believed these things.
Moyer's failure to testify, and the consequent lack of opportunity to
cross-examine him, makes such acceptance hazardous at best. Nor was the
substance of the statements Perryman attributed to Moyer corroborated by the
next-best available evidence, the testimony of those supervisors who supposedly
had expressed their reservations about Harding. Finally, even if Moyer had been
influenced by these other factors, I am not persuaded, especially without the
benefit of his own explanation, that he would have taken the exceptional step
of disapproving the recommendation were it not for the protected activity. I
note especially that, according to Perryman, Harding's was not the only
recommendation that Moyer questioned before making his decision. In no other
case, however, did his reservations result in overruling all the supervisors
who had sent the recommendation forward.(5)

INS also points to Goldstein's testimony that his unit operated under a
practice where a single annual "outstanding" rating did not necessarily bring
an award recommendation. INS reads too much into Goldstein's testimony. He did
not say that a repeated "outstanding" rating was a requirement for an award
recommendation, but only that "the first-line supervisor may elect not to"
recommend an award to an "outstanding" employee who was rated neither
"outstanding" nor "excellent" the previous year. Under such a practice (which
may or may not have been applicable in Harding's unit) Harding probably would
have been recommended for an award. Further, the practice that Goldstein
described left to the first-line supervisor the discretion to recommend a
first-time "outstanding" employee or not. Presumably, a recommendation that was
out of line with existing District policy would have been disapproved by one of
the recommending supervisor's superiors before it reached Moyer's level. In
fact, at least one of Supervisor Rodriguez's superiors did review the Harding
recommendation carefully enough to send it back for editing. I find no merit,
therefore, in the argument that Moyer's disapproval was based on Harding's
failure to show a multi-year pattern of "outstanding" performance. Nor does
this failure, combined with the other factors presented in INS' defense, rebut
the prima facie showing. I conclude, therefore, that INS violated
section 7116(a)(2).

The Remedy

In addition to the traditional make-whole remedy for such a violation,
Counsel for the General Counsel requests some unusual remedial provisions,
which I shall address shortly. With regard to the make-whole remedy, all of the
Sustained Superior Perfor- mance cash awards sent forward by Moyer on May 27
were in the amount of $500.00, and the General Counsel requests an order for an
award in that amount. However, the available documentation for the Harding
recommendation does not include an amount, and other, more complete
documentation of $500.00 awards made to other employees indicates that the
underlying recommendations were for the "Maximum Cash Award" of $500.00. I
shall order that INS grant a cash award to Harding, in the amount originally
recommended by Supervisor Rodriguez, not to exceed $500.00, plus interest. In
the unlikely event that there is a dispute about the amount of the original
recommendation, resolution of such dispute will require INS to show why the
recommendation deviated from the otherwise consistent pattern.

The first of the General Counsel's specialized remedial requests is for
an order requiring INS to submit award decisions in the next three rating
cycles to some entity outside of the Chicago District Office for review. The
reason behind the request is that, since the District Director was personally
the "perpetrator" of the unfair labor practice, his signature on a traditional
Notice to be posted for employees to read will not give the employees the
necessary reassurance that their statutory rights will be recognized by their
employer. The General Counsel notes that the District Director previously
signed a traditional Notice, "to no apparent effect." The General Counsel also
proposes a Notice to all Employees that recites the fact that the Authority has
found that the District Director personally committed the unfair labor
practice.

I do not share the General Counsel's view that the circumstances of
this case warrant the novel remedies he has proposed. The traditional
notice-posting remedy will require the District Director to sign a notice
promising to refrain from the unfair labor practice found and from
interference, restraint, or coercion of employees in any like or related
manner. Whatever efficacy such notices usually have, there is no reason to
presume that those to be posted here will be less efficacious. The District
Director's signature, showing his undertaking on behalf of INS to refrain from
certain conduct is at least arguably a stronger indication to employees that
their rights will be respected here, where the Director is being compelled to
renounce his own action, than where his signature was required
as the highest-ranking official of the responsible agency.

The suggestion that the Director cannot be trusted to act lawfully in
the future because he previously signed a Notice, "to no apparent effect,"
fails because the previous Notice that I believe is being referenced was signed
after the disapproval of the award in this case. While,
technically, the unfair labor practice has continued as long as the award was
not granted, this is different from a situation in which there was a distinct
action or omission in violation of the Statute after the Notice was
signed.(6) Moreover, I may not treat the
Director as a "repeat offender" on the basis of the settlement agreement
pursuant to which he signed that Notice. The settlement agreement contained a
non-admission clause. In any event, I have no reason to believe that the
Director will give the Authority's order in this case less than the respect
that the Statute demands.(7)

With respect to the General Counsel's request that the Notice recite
the fact that the Authority found that Director Moyer engaged in the unlawful
discrimination, the only argument that accompanies this request is that, since
Moyer personally committed the unlawful action, the Notice must reflect his
personal taking of responsibility for it. However, it has not been brought to
my attention that the Authority has adopted the principle that the individuals
directly responsible for unfair labor practices should have their identities
held out for display. The Director is entitled to no greater or less
consideration than any other responsible official with respect to the legal
consequences of his actions. Cf. Exodus 23:2 (You shall neither side
with the mighty to do wrong . . . nor shall you favor a poor man in his
cause.). Such a remedy might be appropriate where there is a either a pattern
of misconduct or a particularly egregious violation. I shall not recommend it
here.

There may be, lurking in the General Counsel's request for such an
attenuated mea culpa in the Notice, the argument that notices should
state that the Authority has found there was a violation of the Statute.
Inclusion of such language is the routine practice of the National Labor
Relations Board, but not of the Authority. Whether the Authority should adopt
the Board's practice is a policy question best directed to it.

I recommend that the Authority issue the following
order:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's
Rules and Regulations and section 7118 of the Statute, the U.S. Department of
Justice, Immigration and Naturalization Service, shall:

1. Cease and desist from:

(a) Discriminating against employees by disapproving recommendations
that they receive Sustained Superior Performance cash awards because they
engaged in protected activities on behalf of the American Federation of
Government Employees, Local 2718, AFL-CIO, the agent of the exclusive
representative of its employees.

(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights assured by the Statute.

2. Take the following affirmative action to effectuate the purposes and
policies of the Statute:

(a) Make whole employee David Harding by granting him the Sustained
Superior Performance cash award recommended by his supervisor, not to exceed
$500.00, with interest for the period in which his award was improperly denied.

(b) Post at its facilities in Chicago, Illinois, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the District Director of the
Chicago District Office, and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that such Notices are not altered, defaced, or covered
by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulation, notify the Regional Director, Chicago Region, Federal Labor
Relations Authority, in writing, within 30 days from the date of this Order as
to what steps have been taken to comply.

Issued, Washington, D.C., January 19, 1995.

__________________________JESSE ETELSON Administrative Law
Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY

AND TO EFFECTUATE THE POLICIES OF
THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT discriminate against employees by disapproving recom-
mendations that they receive Sustained Superior Performance cash awards because
they engaged in protected activities on behalf of American Federation of
Government Employees, Local 2718, AFL-CIO, the agent of the exclusive
representative of our employees.

WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

WE WILL make whole employee David Harding by granting him the Sustained
Superior Performance cash award recommended by his supervisor, not to exceed
$500.00, with interest for the period in which his award was improperly denied.

_________________________ (Agency or Activity)

Date:____________ By:____________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of
posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Chicago Region, 55 West
Monroe, Suite 1150, Chicago, IL 60603-9729, and whose telephone number is:
(312) 353-6306.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

Authority's Footnotes Follow:

*/ The wording that customarily
introduces an Authority Notice does not explicitly mention that a violation has
been found.

ALJ's Footnotes Follow:

1. Moyer's discussion of the
recommendations with Perryman presumably occurred no later than May 18.
Perryman testified that they also discussed whether Rachel Reidell should get
an award. Moyer signed off on Reidell's award on May 18.

3. I draw this inference also because
the records that would show the facts directly are within INS' control and
because INS raised the issue of disparate treatment by presenting evidence that
other "outstanding" employees did not receive awards. I note also that Moyer
received these recommendations only after they had been reviewed and approved
by at least two supervisors in the chain of command of the initiating
first-level supervisors.

4. Some of INS' arguments focus on
Harding's credibility and on his worthiness for the award. I have not found any
of Harding's disputed testimony crucial to the outcome of this case. There-
fore, the credibility of his version of certain incidents is not dispositive
here. Moreover, the proper focus of this case is not whether Harding deserved
the award but whether he would have received it but for his protected
activities. It is irrelevant that granting of such awards is discretionary.
Director Moyer was undoubtedly acting within his authority in disapproving the
award. This case is concerned only with whether he exercised his discretion in
a manner that is prohibited by the Statute.

5. I find no merit in INS' suggestion
that Moyer also relied on a belief that Assistant Deputy Director Piper's
endorsement of the recommendation did not reflect what Piper truly believed.
The testimony cited by INS in this connection, concerning remarks Piper made to
Harding, gives no indication that Moyer was aware of these remarks. Nor does
this testimony corroborate Moyer's hearsay statement to Perryman that Piper
complained to him about Harding's job performance. Piper did not testify.

6. I imply here no statement as to
whether this should be considered a continuing violation for the purpose of
determining the applicability of section 7118(a)(4) of the Statute.

7. Having concluded that the General
Counsel has not made an adequate showing of the need for requiring INS to have
the District Director's award decisions reviewed by someone outside the Chicago
District Office, I do not reach the question of whether such a provision is
within the Authority's remedial powers under the Statute. Cf. U.S.
Department of the Air Force, Air Force Flight Test Center, Edwards Air Force
Base, California and American Federation of Government Employees, Local
3854, 48 FLRA 74, 89-90 (1993) (Arbitrator's remedy of requiring future
work assignments to grievant to be subject to the approval of higher-level
management interferes with management's statutory right to assign work.).